April 15, 2020

19M106B - NICS Self Reporting

AMERICAN BAR ASSOCIATION

STANDING COMMITTEE ON GUN VIOLENCE
COMMISSION ON DISABILITY RIGHTS
CIVIL RIGHTS AND SOCIAL JUSTICE SECTION
CRIMINAL JUSTICE SECTION
COMMISSION ON DOMESTIC AND SEXUAL VIOLENCE
COMMISSION ON SEXUAL ORIENTATION AND GENDER IDENTITY

REPORT TO THE HOUSE OF DELEGATES

RESOLUTION

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to reduce potential harm that individuals may inflict on themselves or others by enacting statutes, rules, or regulations allowing individuals to temporarily prevent themselves from purchasing firearms. Such measures should include, at minimum, the following provisions that:

1. any person may voluntarily and confidentially request that their own name be added to the Index of the National Instant Criminal Background Check System, an equivalent state background system, or to both, to prevent future firearms purchases;

2. the statute, rule, or regulation provide a procedure with appropriate safeguards whereby the person may have their name removed and such record deleted from the System; and

3. the statute, rule, or regulation provide appropriate safeguards to reasonably ensure that persons who request inclusion or removal from the System do not face stigma, discrimination, or any adverse action, and are entitled to confidentiality so that the fact that the person prohibited from purchasing a firearm is only disclosed when a valid background check is done.

REPORT

I. Introduction

Suicide is a public health crisis. It is a leading cause of death in the United States. In 2016, nearly 45,000 lives were lost to suicide. That year, suicide was the second leading cause of death among individuals aged 10 to 34, and the fourth leading cause among those aged 35 to 54. From 1999 to 2016, suicide rates rose in almost every state, up more than 30 percent in half the states and highest in the western states.

Although mental health conditions are often perceived as the cause of suicide, in 2016, 54 percent of people who died by suicide did not have a known mental health condition. In fact, 84 percent of men and 16 percent women with no known mental health conditions committed suicide, compared to 69 percent of men and 31 percent of women with known mental health conditions. Among both individuals with and without known mental health conditions, many factors contribute to suicide. These include relationship problems (42%), crises in the past or upcoming two weeks (29%), problematic substance use (28%), physical health problems (22%), job/financial problems (16%), criminal legal problems (9%), and loss of housing (4%).

Suicides comprise nearly two-thirds of all firearm deaths in the United States, with firearm suicides outnumbering firearm homicides two to one. In 2016, 51 percent of all suicides (2,348 of 4,575 deaths) for males aged 15 to 24 involved firearms. For males aged 25 and over, the percentage of suicides involving firearms increased with age, from 48 percent among those aged 25 to 44 (5,362 of 11,181 deaths), to 55 percent among those aged 45 to 64 (6,579 of 11,943 deaths), to 74 percent among those aged 65 to 74 (2,574 of 3,463 deaths), and to 81 percent among those aged 75 and over (2,656 of 3,291 deaths).
Nearly three-quarters of all suicides among females aged 15 to 24 involved either suffocation (509 of 1,148 deaths or 44%) or firearms (335 deaths or 29%). Among females aged 25 to 44, 32 percent (1,035 of 3,215 deaths) involved firearms, 31 percent suffocation (1,004 deaths), and 28 percent poisoning (887 deaths). Firearms were the second most frequent means of suicide—poisoning first—among females aged 45 and over, accounting for 32 percent of suicides among those aged 45 to 64 (1,361 of 4,253 deaths), 38 percent among those aged 65 to 74 (358 of 940 deaths), and 33 percent among those aged 75 and over (168 of 510 deaths).

Firearms are a particularly lethal means of attempting suicide, with 85 to 90 percent of firearm suicide attempts ending in death, compared to less than 10 percent across all attempts not involving a firearm. Thus, a persuasive argument can be made that because individuals who attempt suicide with a gun rarely get a chance to reconsider their decisions, when guns are less available, fewer suicide attempts will result in fatality, more people will have the chance to reconsider their decisions, and suicide rates will decline.

II. Need for Resolution

Giving individuals who believe they might be at risk for firearm suicide—whether they are struggling with life events, have a mental illness, or experience suicidal ideation—the opportunity to voluntarily put themselves on a no-gun registry may save lives. This conclusion is based on three well-established clinical and epidemiologic observations. First, many suicides are impulsive. Seventy percent of people who made near-lethal suicide attempts took less than one hour between the decision to kill themselves and the actual attempt. Second, suicidal crises are often precipitated by an immediate stressor (e.g., breakup of a romantic relationship, loss or job), so that as the acute phase of the crisis passes often so does the urge to attempt suicide. Third, the great majority of individuals who survive a suicide attempt do not go on to later die by suicide.

Similarly, giving individuals who believe they might be at risk for harming others the opportunity to voluntarily put themselves on a no-gun registry—may save lives as well. One recent study found that firearm waiting periods reduce homicide as well as suicide.

This resolution urges “federal, state, local, territorial, and tribal governments to reduce potential harm that individuals may inflict on themselves or others by enacting statutes, rules, or regulations allowing individuals to temporarily prevent themselves from purchasing firearms.” Any person would be able to voluntarily and confidentially request that their own name be added to the Index of the National Instant Criminal Background Check System (NICS), an equivalent state background system, or to both, to prevent future firearms purchases. The idea behind the no-gun registry is to allow these individuals to prepare for potential crises before they occur.

This option would appeal to individuals who have suicidal ideations, whether due to relationship, substance abuse, physical or mental health, job or financial, criminal legal, or anger management problems, among other reasons. Among 200 people surveyed who were seeking inpatient and outpatient psychiatric care at an academic medical center, nearly half (46%) said they would sign up for the proposal. Further, in an on-line survey with 262 respondents, 29 percent said they would sign up for the proposal with a seven-day delay removal option. Some of these individuals may be at high risk for suicide (for all the reasons outlined above or for other reasons), but others may not be.

III. Do-Not-Sell List

The essential attributes of a do-not-sell list are a voluntary and confidential way to suspend one’s ability to purchase firearms. The second element is a mechanism, with adequate safeguards, for changing one’s mind and regaining the ability to purchase firearms.
The list could work as follows. An individual 18 years of age or older would request that their name be added to NICS, an equivalent (also secure) state background system, or to both, to prevent future firearms purchases from a licensed dealer. The signup process—whether by mail or email—would be voluntary and confidential and require identity verification. Implementation could vary, but examples of identity verification include notarization or electronic notarization. The interface would explain in plain language that the registrant may be temporarily waiving Second Amendment rights. The registrant could later request that their name be removed from the index and/or system. Three weeks after the request for removal, their name would be removed and all records of the transaction deleted. The 21-day delay period is to allow for adequate deliberation.

Note that only an individual can put himself or herself on a list. A person who has legal authority to make decisions for the individual, whether through a guardianship, durable power of attorney, or other means, cannot put the individual on the list.

At the time of registration, registrants would have the option of communicating their waiver of gun rights to others by providing their email addresses. The registry would then alert addressees that the registrant has waived their Second Amendment rights, as well as if the registrant later rescinds their waiver.

Registration prevents purchase only. Registrants who are later found to be in possession of a firearm would not be subject to criminal prosecution. The Do-Not-Sell List is designed to prevent impulsive gun suicide and violence toward others, not to be a broader gun control measure. The List is prophylactic, not punitive. If an individual signed up but later obtained a firearm without a background check, that individual would not be criminally liable. Limiting easy access to firearms is the goal, not punishing individuals who, perhaps in a suicidal crisis, manage to get their hands on guns from other sources.

IV. Support for the Voluntary Do-Not-Sell List

Washington became the first state in the nation to enact legislation that creates a registry allowing individuals to voluntarily waive their right to purchase firearms. Washington citizens can add their names to a do-not-sell list, suspending their ability to buy guns from licensed dealers. Registrants may provide an alternate person to be contacted if they revoke the voluntary waiver. Registrants who do so need only make the request and wait seven days. The law requires in-person registration and withdrawal. Participants have the option of designating a third-party contact to be notified “if a voluntary waiver of firearm rights is revoked.” The law has confidentiality protections, including a prohibition on discrimination based on one’s participation in the program.

Legislators in Alabama, California, Massachusetts, Tennessee, and Wisconsin have introduced similar bills. The Alabama bill would allow individuals to voluntarily be added to the Voluntary Alabama Firearms Do Not Sell List via a secure Internet-based platform. Upon registering, receipt of a firearm by that person is unlawful. The registering individual’s information is reflected in the NICS Index Denied Persons File for Alabama. A registrant can submit email addresses of personal contacts to notify and advise that the registrant has added their name to the list or seeks to rescind their registration.

Registrants can request that their name be removed from the list at any time, and removal would take place automatically 21 days after the request. Upon removal, all records of the registration, associated transactions, and the request for removal are destroyed. The bill makes it unlawful for any person to inquire as to whether an individual is on the list or has requested to be added to or removed from the list for purposes of employment, education, housing, insurance, governmental benefits, or contracting. It is also unlawful to take any adverse action associated with those purposes or health care purposes based on an individual’s registration with the list. Violations give rise to a private civil action.

The California bill directs the state’ department of justice to “study options for allowing a person to register himself or herself on a list or database that prohibits the person from being able to purchase a firearm. The department shall recommend an approach to allow a person to prohibit himself or herself from purchasing a firearm.”

The Tennessee bill would require the Tennessee Bureau of Investigation (TBI) to develop and launch a secure internet-based platform that allows any person in the United States to register to add their own name to the Tennessee Do Not Sell List. This information is reflected in the NICS Index and conveyed to any other state that adopts an analogous “Do Not Sell List.” A person can subsequently request that their name be removed from the registry and wait 21 days for removal. Following removal from the registry, TBI must notify any other participating state registries to and purge all records related to the registration process. Whether a person is on the list or has requested removal is confidential with respect to matters involving employment, education, housing, insurance, government benefits, and contracting, and registrants can bring a private civil action for breaches of confidentiality.

The Massachusetts and Wisconsin bills would also allow voluntary suspension of gun purchase ability. However, those two bills differ from the Do Not Sell List model in several significant respects, including more onerous removal provisions.

V. ABA Policy

The American Bar Association (ABA) has a longstanding tradition of being at the forefront of policymaking to curb gun deaths. For instance, in 2017 the ABA passed policy urging “state, local, territorial, and tribal governments to enact statutes, rules, or regulations authorizing courts to issue gun violence restraining orders, including ex parte orders,” that include a provision that “a petitioner with documented evidence that a respondent poses a serious threat to himself or herself or others may petition a court for an order temporarily suspending the respondent’s possession of a firearm or ammunition.” California, Connecticut, Indiana, and Washington have enacted laws whereby a law enforcement officer or a family member may seek a court order for the temporary removal of guns from a potentially dangerous persons pending a full hearing. In fact, a 2016 study of the Connecticut Gun Violence Restraining Order statute estimates that it has prevented up to 100 suicides.

Also, in 2012 the ABA adopted policy opposing “governmental actions and policies that limit the rights of physicians and other health care providers to inquire of their patients whether they possess guns and how they are secured in the home or to counsel their patients about the dangers of guns in the home and safe practices to avoid those dangers.” Health care practitioners play a key role in counseling patients about the risks of injuries and best practices to minimize those risks as part of the practice of preventive care. The Centers for Disease Control and Prevention (CDC) highlight the important role health care systems can play in providing high-quality, ongoing care focused on patient safety and suicide prevention. There is widespread agreement that good medical care includes conversations about the safe storage of firearms, as responsible storage can prevent suicide by children and teens. A majority of adults in the United States, including gun owners, believe it is appropriate for physicians to talk to their patients about firearms. Gun owners who receive counseling are more likely to store their guns responsibly.

Further, in 2011 the ABA enacted policy urging “applicable governmental entities to take all appropriate measures to ensure that the National Criminal Instant Background Check System (NICS) is as complete and accurate as possible, so that all persons properly categorized as prohibited persons under 18 U.S.C. § 922(g), are included in the NICS system.” In states that go beyond federal law and require background checks on all handgun sales, including guns sold by unlicensed sellers, there are 47 percent fewer gun suicides. For example, Connecticut’s background check law led to an estimated 15 percent reduction in the state’s gun suicide rate.
This proposed resolution builds on the current policies, seeking to curb firearm suicide deaths by allowing individuals to voluntarily restrict their own access to firearms.

VI. Low-Cost Implementation

The cost-per-life-saved of this proposal would be very low. The federal background check system (NICS) has been granted its requested appropriation and is operational. All licensed gun dealers are already required to check the confidential federal database before selling a firearm. All that is needed to implement the proposal at the federal level is a mechanism for securely adding and subtracting names. After an initial start-up investment, the process could be more or less automated.

Implementation at the state level would also be cost-effective. The federal background check system allows states to add to the federal database the names of individuals who are barred from purchasing a firearm by state law but not federal law. Each state could implement the proposal by creating its own sign-up mechanism for its own residents, then sending those names to the federal system. Each state has control over its own state disqualifier database in NICS, so states could implement the proposal without relying on FBI processes or formal NICS appeal procedures.

Of course, people must know about the program in order to take advantage of it. For example, the bill introduced and passed out of committee in Alabama provides for “publicity and advertising campaign . . . that at a minimum provides the public with information about the list, how an individual may register to be added to the list, and contacts for additional information regarding the list.”

VII. The Proposal Would Not Violate the Second Amendment

The Second Amendment case closest on the facts to the proposal is Silvester v. Harris. Plaintiffs in Silvester argued that California’s 10-day waiting period to purchase a firearm violated the Second Amendment. The Ninth Circuit rejected that argument, ruling that the waiting period imposed a burden on Second Amendment rights, but not so great a burden as to justify more than intermediate scrutiny. The court held that the waiting period passed intermediate scrutiny because it provided a cooling-off period to deter violence and suicide.

Based on Silvester, one can persuasively argue that restricting an individual’s own ability to purchase a firearm with an automatic, but delayed revocation option is functionally equivalent to a self-imposed waiting period. If a mandatory waiting period does not violate the Second Amendment, as Silvester squarely holds, then neither does a less restrictive, optional waiting period.

The next closest line of cases involves firearm restrictions based on dangerousness. Restrictions of this kind have been upheld time and time again. An optional and temporary measure is less restrictive than a mandatory restriction premised on someone else’s judgment that the restricted party is “dangerous.” In other words, the proposal’s constitutionality follows a fortiori from the constitutionality of waiting periods and dangerousness restrictions.

A third argument in favor of constitutionality rests on the proposition that “the Second Amendment’s guarantee of an individual right to keep or bear arms in self-defense should include the freedom not to keep or bear them at all.” Firearm self-restriction would provide a tool to strengthen this right not to bear arms—by binding oneself against impulsively buying arms in the future. The animating principle of the Second Amendment is self-defense. One ought to be able to defend oneself against suicide.

Finally, an individual who restricts their own ability to purchase firearms generally waives their Second Amendment rights. Waivers of constitutional rights “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Sign-up systems should include clear and prominent explanations that the individual is waiving such rights.

VIII. Conclusion

This resolution will further existing ABA policy aimed at curbing firearm deaths by focusing on suicide, which comprises nearly two-thirds of all firearm deaths in the United States. Giving individuals who are at risk of suicide the opportunity to voluntarily prohibit themselves from buying a firearm is a modest and inexpensive approach that could save lives. The ABA should advocate strongly for this legal step to combat this public health crisis.
Respectfully submitted,

Joshu Harris
Chair, Standing Committee on Gun Violence
January 2019